In a case involving a trip and fall, partner Jim Murphy was successful in arguing the Village of Freeport was not liable for the plaintiff’s injuries. The case involved a 2015 trip and fall that occurred after the plaintiff fell on a pothole on the roadway in front of a condominium complex in Freeport, New York. The plaintiff brought an action against the Village of Freeport for the injuries she sustained. Montfort Healy, in representing the Village, brought a motion for summary judgment asserting that the Village was not liable for the plaintiff’s injuries.
Under Section 27-3 of the Code of Ordinances of the Incorporated Village of Freeport, no civil action may be maintained against the Village for injuries sustained by reason of defect in the streets unless prior written notice of the defect was actually given to the Village Clerk. In support of the motion for summary judgment, Mr. Murphy provided evidence that the Village of Freeport did not have any prior written notice of the defect as required by the Ordinance.
Mr. Murphy first proffered an affidavit from the Village of Freeport Clerk, who stated there was no record of any written notice received by the Village in regards to the defect in the road. He additionally provided an affidavit of the Superintendent of the Department of Public Works in which the Superintendent indicated that there was no substantive road work performed by the Village in the area of the pothole for a period of ten years prior to the date of the accident. The Superintendent admitted that the Village does perform pothole maintenance, but does not keep records of such repairs. Mr. Murphy also provided an affidavit from an Information Specialist for the Village, whose duties included reviewing the Village’s website for communications received by the Village, who confirmed that no website complaints were received before the date of the accident.
In opposition to the motion, Plaintiff submitted four depositions and one affidavit. The first deposition was of the plaintiff who stated she was injured in a pothole where there was clearly patchwork on potholes done in the area. The second deposition was of a construction inspector for the Village’s Department of Public Works who testified that he would receive assignments to repair potholes, or would refer the repairs to the Highway Department. The third deposition was of the Superintendent of Public Works. The Superintendent testified that there was no form or document that he was required to complete with regards to repairing or filling potholes in the Village. He further testified that he received an email forwarded by the Mayor to him regarding several deep potholes in the area of the accident. He confirmed repairs were made, but there were no records kept of such repairs. Lastly, the Plaintiff provided a deposition of the Highway Supervisor for the Department of Public Works who recalled receiving several complaints regarding the area of the accident from 2013-2015.
The plaintiff also provided an affidavit from a member of the Board of Managers of the Condominium across the street from the accident location which stated she made numerous telephone calls to the Village of Freeport before and after the incident to complain about the road condition. She confirmed the Village had repaired the potholes in the past.
Upon reviewing the above evidence, the Honorable Jeffrey S. Brown of the Supreme Court of Nassau County found that the defendants did not receive proper prior written notice of the defect. The Hon. Jeffrey S. Brown noted that although the Mayor had received an email and forwarded it to the Superintendent of Public Works, such notice was insufficient to comply with the Ordinance. He additionally noted that the email did not indicate the same location as the plaintiff’s accident.
Moreover, Judge Brown relied on the case of Gonzalez v. Town of Hempstead, 124 A.D. 3d 719, 720 [2d Dept. 2015] in concluding the plaintiff’s argument that the Village had actual notice of the pothole, and may have provided repairs, the knowledge does not override the statutory requirement of prior written notice.
In all, he found that the Village did not receive proper notice of the defect and that a special use exception to the prior notice requirement was not present. He concluded that Mr. Murphy, in representing the Village of Freeport, made a prima facie showing that the Village did not create the defect through an affirmative act of negligence. The Plaintiff failed to provide any evidence that any act by the Village immediately resulted in the dangerous condition leading to plaintiff’s accident. Therefore, the motion for summary judgment was granted in favor of the Village.
To read a full copy of the decision, click here.